and before the expiration of the first exten- | tried to the court upon an agreed statement sion the said judge granted another exten- of facts, the material parts of which are: sion of 60 days from the time theretofore granted. Defendant in error moved to dismiss the appeal for the reason that the judge pro tempore had no power to make said second order of extension after he had ceased to sit in the cause. The court held the contention of defendant in error to be correct. Upon the above authority, this cause must be and is dismissed. All the Justices concur. (63 Okl. 231) KELLY V. BLACKWELL et ux. (No. 6837.) (Supreme Court of Oklahoma. Jan. 30, 1917. Rehearing Denied April 17, 1917.) (Syllabus by the Court.) 152 EXECUTORS AND ADMINISTRATORS PURCHASE FROM HEIR-RECOVERY OF PRICE. B. qualified as administrator of J., a deceased Choctaw minor, and thereafter selected his allotment, which descended to his father and mother him surviving as his only heirs at law. While administrator, they conveyed the land to B., who sold the same to K., who gave back to B. his promissory note in part payment of the purchase money, payable upon the delivery by B. to K. of an abstract showing a clear title in B. There were no debts against the estate of J.; the land was unrestricted; the deed was for an adequate consideration; and there was no fraud in the transaction. Held, in a suit by B. against K., to enforce payment of the note, that the abstract containing said deed showed a clear title in B.; and that he was entitled to recover on the note. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 340.] "4. It is agreed that the land in question was allotted to Jim Joel, a Choctaw minor Indian; that the allotment was made on the 27th day of October, 1905, and was made after the death of the said Jim Joel, and was made by A. P. Blackwell as administrator for the said Jim Joel, and the said A. P. Blackwell acting as administrator is the same A. P. Blackwell as plaintiff in this action, and that Jim Joel, allottee, died intestate while a child only about one year old, and left surviving him his father and mother. Hampton and Silen Joel, and no brothers or sisters. "5. That on December 20, 1905, A. P. Blackwell purchased the land in question from Hampton Joel and Silen Joel, father and mother of Jim Joel, the allottee; that the said A. P. Blackwell was appointed administrator on the 17th day of October, 1905, for the purpose of selecting the allotment, and that he purchased the lands on the 20th day of December, 1905, and at the the administrator, and that the purchase was time of purchase he had not been discharged as made from the mother and father direct. From which the court concluded as a matter of law that plaintiffs were entitled to recover, and rendered and entered judgment accordingly, to reverse which defendant brings the case here. It is urged by defendant that the deed from Hampton Joel and Silen Joel, father and mother, and only heirs at law of Jim Joel, dated December 20, 1905, is void because, he says, the same was made, executed, and delivered by them to Blackwell as the result of a purchase from them by Blackwell while undischarged as administrator of Error from District Court, Jefferson Coun- Jim Joel. Not so. It being conceded that ty; Frank M. Bailey, Judge. Suit by A. P. Blackwell and L. R. Blackwell, his wife, against E. J. Kelly. Judgment for plaintiffs, and defendant brings error. Affirmed. Bridges & Vertrees, of Waurika, for plainHatchett & Ferguson, of Du tiff in error. rant, for defendants in error. TURNER, J. On August 14, 1913, A. P. Blackwell and L. R. Blackwell, his wife, defendants in error, sued E. J. Kelly, plaintiff in error, in the district court of Jefferson county on the following promissory note: "$2920.00. "Waurika, Oklahoma, January 22, 1910. "I, E. J. Kelly, of Waurika, Oklahoma, hereby agree to pay to A. P. Blackwell of Durant, Oklahoma, the sum of twenty-nine hundred and twenty dollars ($2920.00), said amount to be due and payable thirty days after abstract is furnished me showing a clear title in A. P. Blackwell to certain lands in Jefferson county, conveyed by A. P. Blackwell and wife to me on the 20th day of January, 1910, for which amount a vendor's lien is retained for the payment of E. J. Kelly." For answer, after a general denial, Kelly specifically denied liability on the note, because, he said, the abstract tendered him by Blackwell failed to show in him a clear title to the land. After reply filed, the cause was same. there were no debts against the estate, that the land was unrestricted, and that there was no fraud in the transaction and the consideration was adequate, the deed was good and passed the title of the father and mother the only heirs of Jim Joel-to Blackwell. 18 Cyc. 349 lays down the rule thus: "While the purchase by an executor or administrator of real estate of his decedent or any interest therein from the widow, heirs, devisees, or others in interest is highly disfavored, the judicial disposition is usually to do no more than presume strongly against the validity of such a purchase and require the fiduciary to show affirmatively adequacy of consideration and the general fairness of the transaction, and if the transaction is in good faith and without fraud it may be treated as a similar transaction between strangers would be." In Haight v. Pearson, 11 Utah, 51, 39 Pac. 479, the facts were that plaintiff as executor of his father's estate bought, through his attorney, from a brother, another one of the heirs of the estate, the brother's share of the father's lands. When plaintiff brought suit against his attorney to recover the lands, the attorney, among other things, pleaded that: "The plaintiff was incapable of purchasing an interest in the estate, because he was executor. Being incompetent to purchase himself, he could not have another purchase in trust for him, and cannot therefore enforce any trust." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 104 The attorney relied upon Comp. Laws Utah! 1888, § 4196, p. 513, which reads: # * * "No executor must, directly or indirectly, purchase any property of the estate he represents, nor must be interested in any sale." He also relied upon the rule of equity to the effect "that contracts in which a trustee both buys and sells to himself are void." But the court held such statute and rule of equity had nothing to do with the case, and that plaintiff had a right to recover, and in passing said: "But a contract to purchase the interest of an heir in an estate by an executor does not come within the letter or spirit of either the statute or this equitable rule. The executor has no authority, as such, to sell the interest of an heir in the estate. Such interest is not in any sense property of the estate; it is the property of the heir, and he alone can sell it. Owing to the advantage that might be taken of heirs by executors or administrators, if we were called upon to pass upon such a sale where the heir was claiming that he had been overreached or wrong ed, we should scrutinize the matter, and, if unfair in its terms, would not hesitate to set such contract aside, but not because it was in violation of the statute cited. In other words, these sales by an heir to an executor are not within the statute at all. If they are fair in themselves, they should be upheld the same as other contracts.' In Barker v. Barker, 14 Wis. 142, a widow sued for partition of her deceased husband's estate, claiming to be the owner by purchase of the portions of two of the eight heirs, who answered, together with the other six, that the purchase was made with funds of the estate held by the plaintiff as administratrix, and it was insisted that she should be adjudged by the court to hold the same in trust for the heirs, which the court proceeded to do as to the lands so purchased, but as to lands purchased not with the trust funds, the court held the deeds conveyed title, and in the syllabus said: "An administrator is not a trustee for the heirs, of the real property of the estate not necessary to be sold for the payment of debts, and may purchase in his own right, with his own funds, the interest of any of the heirs in such property." In the opinion the court said: trust. "In our former decision we stated that we were satisfied from the evidence that no actual fraud was practiced by the widow in the pur chase of those shares, by which the sale could be set aside. We will now add, upon a further consideration of the question, that we are satisfied that she did not stand in any such relation to them as would avoid the sale by an application of the law concerning the purchase of the trust estate by the trustee from the cestui que Where the rule is applicable, we have adhered to it strictly. Gillett v. Gillett. 9 Wis. 194. But here we think the relation of trustee and cestui que trust with respect to the real estate did not exist. The administratrix had no title to it, but it descended to the heirs. True, it was liable, if necessary, to be sold to pay the debts of the deceased, by virtue of a statutory proceeding for that purpose. But in this case the necessity authorizing such a proceeding did not exist; no such proceeding was had; and the mere possibility of it in case the necessity had existed does not make the administratrix the trustee of the heir, and incapacitate her from purchasing his interest in the real estate." In Carter et al. v. Lee, 51 Ind. 292, the facts were: We "George Cline died, seised in fee of the premises, and after his death his heirs conveyed the property to the plaintiff in fee. At the time of Cline's death, the property was in possession of the defendants Thomas Carter and Fisher, as tenants of Cline from year to year. Before the commencement of this action, the plaintiff had put an end to the tenancy by a proper notice to quit. The plaintiff was the administrator of the estate of George Cline at the time he took the conveyance from his heirs. The personal assets of the estate amounted to only about $600, while Allen Carter had a claim allowed against it amounting to nearly ten times that amount. If on these facts the plaintiff was entitled to recover as against Thomas Carter and Fisher, the judgment below was correct. are of opinion that on the facts the plaintiff was The land, on the death of entitled to recover. Cline, descended to his heirs, and they could convey it, subject to the payment of debts. The purchase by the plaintiff, while he was administrator, from the heirs, may have been voidable, but we do not decide that it was so. He took the land, however, subject to the claims of the creditors of the estate. The purchase was clearly not void, if voidable. Had the debts all been paid, or should they yet be paid, we see no reason why the sale should not stand, in the absence of any actual fraud, which is not shown. If the sale was voidable, it could only be avoided by parties interested, heirs or creditors. The appellants were neither, and it does not lie with them to interpose objections to the sale." In Herron v. Herron, 71 Iowa, 428, 32 N. W. 407, the facts were that plaintiff was the father and defendant the widow of John Herron, who theretofore died intestate and without issue the owner of the real estate involved. Some time after his death plaintiff, the father, gave to a son power of attorney to sell and convey his interest in the real estate, which he did, and thereafter the father came into court and sued to set aside the deed on the ground of fraud. But the court, after affirming the judgment of the trial court refusing to set it aside, said: "Defendant had been appointed administratrix of the estate of her husband before the transaction in question. It is urged that her position with reference to the estate created a fiduciary relation between the parties; and, as she acquired an interest in the property of the estate in the transaction, it is presumptively fraudulent. But, clearly, this position is not tenable. Defendant did not occupy a position of trust or special confidence towards plaintiff. She did not deal with his attorney in her capacity as administratrix of the estate. On the death of John Herron, the real estate of which he was seised descended in equal shares to plaintiff and de fendant. Her interest in the property was a personal interest. In her representative capacity she had no interest whatever. It was a case of tenants in common dealing with each other with reference to the common estate. Neither of the parties was charged with the duty of protecting the rights or guarding the interest of the other in the property. They stood upon an equality, and clearly there can be no presumption of unfairness or fraud in the transaction." See, also, Taylor v. Taylor, 259 Ill. 524, 102 N. E. 1086; Wright v. Arnold, 14 B. Mon. (Ky.) 638, 61 Am. Dec. 172; State ex rel. Jones v. Jones, 53 Mo. App. 207; Golson v. Dunlap, 73 Cal. 157, 14 Pac. 576; Matter of Ledrich, 68 Hun, 396, 22 N. Y. Supp. 978; 22 Cent. Dig. | he learned that it belonged to a man at tit. "Executors and Administrators," § 622. We are therefore of opinion that the deed complained of showed a clear title in Blackwell, and that the judgment of the trial court should be affirmed. All the Justices concur. (63 Okl. 185) PITTS v. PITTS. (No. 7218.) Muskogee by the name of Pitts. Thereafter he went to Muskogee for the purpose of seeing Pitts with reference to the purchase of said land. Upon making inquiry in Muskogee as to where Pitts could be found, he was directed to the office of plaintiff, where he made known his mission. Plaintiff thereupon undertook to sell him said land, but failed to do so. Plaintiff then called defendant (Supreme Court of Oklahoma. March 20, 1917.) S. C. Pitts over the telephone, and a meeting (Syllabus by the Court.) 1. BROKERS 56(3)—RIGHT TO COMMISSION— SERVICES. The mere introduction to the owner by a broker of one who thereafter purchases the premises does not entitle the broker to a commission for the sale of the premises, where the purchaser has already seen and is fully advised as to the property, and has already determined to purchase the same. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 86-89.] 2. BROKERS ~56(3)—RIGHT TO COMMISSION— SERVICES. The fact that a broker possesses the same surname as the owner of the premises, and by mistake of the intending purchaser is accidentally brought into contact with such purchaser whom he never saw before, where the broker does nothing further than to direct the intending purchaser to the true owner, after an unsuccessful attempt to make a sale, who thereafter negotiates a sale of the property, does not entitle the broker to a commission. [Ed. Note.-For other cases, see Brokers, Cent. Dig. § 86-89.] between defendant and Gilstrap was brought about. Negotiations were had between defendant and Gilstrap, but no deal was consummated. Thereafter a Mr. Tinch, who was engaged in the loan business, having learned that Gilstrap desired to buy the Pitts farm, concluded that if he could bring about a trade between Pitts and Gilstrap he could make a loan upon said property. With this object in view, he went to Stigler and induced Gilstrap to come to Muskogee. Having learned that Gilstrap would come to Muskogee, he went to the telephone with a view of calling S. C. Pitts, but instead, by mistake, called Bert Pitts and told him that Gilstrap would be in to close the deal. Plaintiff thereupon called defendant over the telephone, informing him of that fact. Gilstrap and defendant met in Tinch's office, and finally closed the deal, and plaintiff, learning of the sale, demanded a commission therefor. The first question urged is that plaintiff, having declared upon an express contract, was not entitled to recover on a quantum meruit. The evidence failed to show an express agreement for any certain sum, but plaintiff proved what would be a reasonable commission under the circumstances. In King et al. v. Stevenson et al., 29 Okl. 29, 116 Pac. 183, plaintiff, who was a real Error from Superior Court, Muskogee estate agent, brought his action for commisCounty; F. L. McCain, Judge. sions alleged to have been earned on the sale of land and relied upon a special contract. He recovered upon quantum meruit, and it was held error to admit evidence establishing the same and to instruct the jury that it might return a verdict for such sum as was customary for services shown to have been rendered. In the present case no objection was made to the introduction of this evidence. In the case cited it is stated: "And where plaintiff declares upon an express contract, he must, except in those cases where on the introduction of evidence by consent a departure is permitted, succeed or fail upon the issue which he thus tenders." HARDY, J. Bert Pitts sued S. C. Pitts in the superior court of Muskogee county to recover certain sums alleged to be due him as commission for services in connection with the sale of a farm, and recovered judgment therefor, and this appeal is from the judg- By failing to object to the introduction ment rendered in his favor. The parties will of this evidence, defendant is not in a posibe referred to in accordance with their position to urge error upon its admission. tions in the trial court. The undisputed facts are that one Gilstrap had purchased a piece of land near Featherstone, and after looking it over saw the land adjoining it, and concluded that he wanted to purchase it as an addition to his farm. After inquiry in the neighborhood, [1, 2] The court should have instructed a verdict for defendant. The mere introduction to the owner by a broker of one who thereafter purchases the premises does not entitle the broker to a commission for the sale of the premises, where the purchaser has already seen and is fully advised as to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the property, and has already determined like conclusion upon a similar state of facts. to purchase the same. The mere accident In that case Mulhall had been dealing with that the broker possesses the same surname Morris for the lands in question, and was en as the owner and by mistake of the intending route to see it and Morris, and while in purchaser is accidentally brought in con- Moscow, Idaho, happened into the office of tact with such purchaser whom he never Spotswood & Veach, and made some inquiry saw before, where the broker does nothing about Denver land and the country in generfurther than to direct the intending purchas- al, and Spotswood suggested that he give er to the true owner after an unsuccessful Mulhall a letter of introduction to Morris, the attempt to make a sale, who thereafter nego- owner. After receiving the letter, Mulhall tiates a sale of the property, is not sufficient proceeded to Lewiston, and met Morris, to entitle the broker to a commission. Be- and presented the letter. It was held that fore the broker is entitled to a commission, under this state of facts, Spotswood & Veach he must be the procuring cause of the sale did not call Mulhall's attention to the land, and to be the procuring cause of a sale the and were not entitled to recover. In passing broker must first call the purchaser's atten- upon the case the court said: tion to the property, and start negotiations, "He had concluded to go and inspect said land which culminate in the sale thereof. Wheel- more than a month before he met respondents, an et al. v. Hunt, 37 Okl. 523, 133 Pac. 52. having had his attention called to it by B. F. Morris, and had proceeded about 2,000 miles on In Shapiro v. Shapiro, 117 App. Div. 817, his way to see the land before he accidentally, 103 N. Y. Supp. 305, Barnett Shapiro owned or incidentally, met respondents. Those are the certain property which was for sale. A undisputed facts. Respondents were informed brokerage firm called the property and the by Mulhall that he was on his way to see said land. The giving of said letter of introduction price to the attention of a prospective pur- was a work of supererogation, and for the evichaser, who made a memorandum, including dent purpose of laying the foundation for a comthe owner's name and went to look at the mission. The respondents had no more right to houses. Thereafter, attempting to call the appropriate as their own a purchaser found by appellants than appellants had to appropriate owner to the telephone, by mistake, he called one found by respondents, provided the land had up another Shapiro, who truthfully admitted been listed with them. There must be a little that he was Mr. Shapiro, and said that he honor between real estate agents." knew about the houses, and who finally made an appointment to bring the intending purchaser and the owner into personal communication. A sale was finally effected by the owner, and the broker sued for commission. Other brokers claiming a right to the commission, same was paid into court, and the owner was relieved by order of interpleader, leaving the question to be litigated between the rival claimants The claim of Shapiro was denied, and the judgment was affirmed. The court said: "If the buyers were in fact Michel & Scott, they were in possession of the particulars, knew the name of the owner, and were actually seeking him, when the accident of name and surname permitted the broker Shapiro to get wind of the project, and to proffer his services, which were really nothing more than to secure what direct telephonic communication might have brought to pass, if the right Shapiro had been found under the wrong Shapiro's telephone number." In Lord v. United States Transp. Co., 143 App. Div. 437, 128 N. Y. Supp. 451, in a similar case, it was said: "It is perfectly clear on uncontroverted evidence that the defendant was looking for a tenant for part of this pier, and that the French Line was looking for this particular pier before the attention of the plaintiff was drawn to the matter." In reversing the case the court said: "It may well be, as indicated by the testimony of Cauchois, that the plaintiff's call on Cauchois expedited their coming together; but it was inevitable in the circumstances that they would meet with respect to this proposition, even had the plaintiff not intervened to precipitate it." Spotswood v. Morris, 12 Idaho, 360, 85 Pac. 1094, 6 L. R. A. (N. S.) 665, reaches a with the rule declared in the foregoing authorities, plaintiff was neither the procuring [3] Under the evidence and in accordance cause of this sale nor the efficient agent in effecting it. The purchaser obtained his information prior to seeing plaintiff, and ac cidentally entered his office in his search for the defendant. The moving and procuring cause of this sale occurred before plaintiff knew of the purchaser or of his desire to acquire the property and the plaintiff had no connection with the efficient agency that brought it about, and the sale clearly was not a result of his efforts. The judgment is therefore reversed. All the Justices concur. (65 Okl. 177) THOMAS v. HUDDLESTON et al. (No. 8273.)* (Supreme Court of Oklahoma. Oct. 10, 1916. Rehearing Denied April 10, 1917.) (Syllabus by the Court.) 1. NOTICE 2-VENDOR AND PURCHASER 227-STATUTE "ACTUAL NOTICE." "The words 'actual notice' do not always mean in law what in metaphysical strictness they import. They more often mean knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts. One who purchases land with knowledge of such facts as would put a prudent man upon inquiry, which if prosecuted with ordinary diligence would lead to actual notice of rights claimed adversely to his vendor, is guilty of bad faith if he neglects to make Second petition for rehearing denied. such inquiry, and is chargeable with the 'actual notice' he would have received." [Ed. Note. For other cases, see Notice, Cent. Dig. § 2; Vendor and Purchaser, Cent. Dig. 8 474. For other definitions, see Words and Phrases, First and Second Series, Actual Notice.] 2. NOTICE 6-FACTS PUTTING ON INQUIRY. "Whatever is notice enough to excite attention and put the party on his guard and call for inquiry is notice of everything to which such inquiry might have led. When a person had sufficient information to lead him to a fact, he shall be deemed conversant of it." [Ed. Note.-For other cases, see Notice, Cent. Dig. §§ 4-7.] Commissioners' Opinion, Division No. 3. Error from District Court, Okfuskee County; Geo. W. Crump, Judge. Action by Elnora Thomas, née Elnora Barnett, against C. T. Huddleston, Scottie Herriford, C. H. Dixon, Porter Grimes, and T. M. Haynes to cancel certain conveyances as clouds upon plaintiff's title, in which Dixon and Grimes filed a cross-petition against Herriford and Haynes, and in which, after the death of defendant Grimes, the action was revived by his widow, heirs, and administrator. Judgment for defendants, and plaintiff brings error. Reversed, with direction to enter judgment in favor of plaintiff canceling all of the deeds mentioned in her petition and quieting in her the title to the land involved. in error. Fred M. Carter, of Okmulgee, for plaintiff Wm. S. Peters, of Boley, and J. B. Patterson and C. T. Huddleston, both of Okemah, for defendants in error. Five Civilized Tribes, on January 16, 1912. On November 15, 1911, pursuant to an order of sale in a proceeding in the county court of Okfuskee county, 120 acres of the lands allotted to the plaintiff were sold by her guardian in separate parcels, 80 acres to Polly Barnett, her stepmother, and 40 acres to one D. J. Turner, for $2,400 and $1,040 cash respectively. On December 2, 1911, these sales were confirmed by order of court, and the guardian executed deeds to such purchasers. On the same day, D. J. Turner without consideration executed to Polly Barnett a conveyance of the lands described in the guardian's deed to him. Such conveyances were shortly thereafter recorded in the office of the register of deeds of Okfuskee county. No part of the consideration recited in the return of sale, order of confirmation, and the guardian's deed was ever paid. In May, 1912, Polly Barnett approached one Lake Moore to borrow money, to be secured by a mortgage on said 120 acres. Whereupon, at the instance of Moore, he and Polly Barnett and her husband, James Barnett, the father of plaintiff, sought the opinion of the defendant Huddleston, an attorney at law, as to the validity of the title of Polly Barnett to such lands. Huddleston advised them that the guardianship proceedings were irregular, and that to clear the title the land should be resold upon proceeding in the county court, and that it would be best that Polly Barnett execute a quitclaim deed thereof to Moore, and also that the plaintiff, who it was claimed would soon thereafter become of age, execute a deed of conveyance BLEAKMORE, C. This action was com- describing said lands to Moore. Accordingly, menced in the district court of Okfuskee on May 6, 1912, a deed was executed by the county on May 7, 1914, by Elnora Barnett, | plaintiff to Lake Moore describing her entire plaintiff, against C. T. Huddleston, Scottie allotment of 160 acres, for the recited conHerriford, C. H. Dixon, Porter Grimes, and sideration of $1,000. No part of such conT. M. Haynes, defendants, to cancel certain sideration was paid, nor was it contemplated conveyances as clouds upon her title to the by the parties that it should ever be paid. land therein described, etc. Huddleston an- On the same day, there was filed in the swered, denying possession and disclaiming guardianship proceedings in the county court any interest in the land. Haynes answered a petition signed by Morris Barnett, purportlikewise. Dickson and Grimes answered sep-ing to act as the guardian of plaintiff for arately, denying generally the allegations of the sale of her entire 160 acres allotment; the petition, admitting the purchase of cer- and on May 13, 1912, in said guardianship tain portions of the lands involved from Scot-proceedings an order was made authorizing tie Herriford, and by way of cross-petition the sale thereof. against her and T. M. Haynes, Scottie Herri- On May 29, 1912, Polly Barnett executed ford answered, and she with defendant Haynes also answered the cross-petitions. Pending its disposition in the court below, defendant Grimes died, and the action was revived; his widow, heirs, and administrator being made parties. There was trial to the court resulting in judgment for defendants, from which plaintiff has appealed. The lands involved, 160 acres, constitute the allotment of the plaintiff, Elnora Barnett, a citizen of the Creek Nation, who arrived at her majority, as shown by the enrollment records of the Commissioner to the her deed describing said 160 acres of land to Lake Moore. No consideration passed to her for this conveyance. On June 3, 1912, in said guardianship proceeding there was filed a return of sale by the guardian showing the sale of said 160 acres to Lake Moore for the sum of $1,000. On July 8, 1912, the county court confirmed the sale of said land, it being recited in the order that the guardian appeared by his attorneys, Huddleston & Hockensmith, and that C. T. Huddleston raised the former bid to the sum of $2,000. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |